I am upset to see Vermont’s recent legalization of marijuana is being used to justify a giant step backward in terms of personal rights.

I am afraid, I admit, that a deal was struck: that all along, some said, “Yeh, I’ll vote for this, but I’ll also let you dig another step deeper into my life.

The ACLU has voiced their objection to the currently discussed bill (H.237) .

My first attempt at writing on this appeared in VTDigger yesterday. Here it is (link at bottom of page):

Legalization of Marijuana Does Not Justify Saliva testing

Legalization of marijuana is a significant shift in the state government’s role in “regulating” cannabis use. In Vermont, the first state to legalize marijuana by legislation as opposed to referendum, the major change is in mentality: shifting marijuana use from a governmental concern to one of personal choice. Moving from decriminalization to legalization, however, is not at all certain to significantly change the actual consumption of marijuana. Marijuana, legal or not, has been widely available for decades. Visions of the state being overrun by the drug-crazed is an assumption that ignores the fact that cannabis use is widespread not only in Vermont, but throughout the country.

Unfortunately, legalization is being used by some to argue for far more aggressive state police policies, specifically taking saliva swabs and, potentially, blood samples. This turns a law enacted to free citizens from governmental interference into a rationale to seriously limit the liberties of all, since even those who have never used cannabis could be detained and tested.

Under the proposed legislation (H. 237), officers who “reasonably” believe that a person may be under the influence of marijuana are authorized to begin a series of steps similar to those used for alcohol, but more invasive in both length of time being detained and in deprivation of personal privacy.

Saliva-testing for cannabis is not at all the same as a breathalyzer testing for alcohol. On what objective standard is an officer’s judgment based that a person may have consumed marijuana? At a sobriety checkpoint, for example, the driver may have given no indication in impaired driving and may have no signs in their breath or demeanor. But if the officer doesn’t like the look of the person’s eyes, or the “normality” of the person’s responses to questions, the officer can then detain the subject until the proscribed tests have been administered.

No one, including the manufacturers of the saliva or blood tests themselves, even attempts to argue that the tests can accurately determine the recency of use or amount of ingestion, let alone the degree of impairment. Thus a person who is “presumed innocent” may be held, have their saliva checked, be vulnerable to the abuse of such a test to collect DNA, and, then, if THC is found (as would be expected, for example, in anyone using marijuana for medicinal purposes), further held until a blood test is taken. Even testing advocates acknowledge that neither test can be considered “evidentiary.” Neither test can distinguish a person who is seriously impaired from a person who legally ingested many hours or even days before sitting behind the wheel of a car. When a person is held to be tested by an assessment that has no validity, one’s liberty is being encroached for no reason that would hold up in a court of law. The fact that some other states enforce such a parody of justice is no justification for its use in Vermont.

I was pleased to see the ACLU has taken the stance, based largely on similar arguments, that saliva testing based on an officer’s subjective judgment of cannabis use is unacceptable. It is my sincere hope that the Vermont legislators who were insightful enough to see the value of legalization will also be insightful enough to see that validating a deprivation of everyone’s rights to be a poor “balance” to the change from decriminalization to legalization.

Jonathan Mack, Ph.D., professor emeritus of Psychology of the State University of New York, is the former Chair of the Selectboard of Newfane, VT. He currently manages the Hooker-Dunham Theater and Gallery in Brattleboro.